Background ▼

When a court can reasonably interpret a statutory text two ways, it often looks to extrinsic aids to interpretation, with the most common aid today being legislative history. See Norman Singer, Sutherland Statutory Construction § 48:01 (6th ed.) [KF 425.S56 2000]. This was not always the case. Use of legislative history to construe ambiguous statutory language was uncommon in the United States before the mid-eighteen hundreds. Until the U.S. Supreme Court decided Dubuque & Pac. R.R. v. Litchfield, 64 U.S. 66 (1860), the Supreme Court did not rely on legislative history at all when interpreting public acts. See Note, Why Learned Hand Would Never Consult Legislative History Today 105 Harv. L. Rev. 1005, 1009 (1992) [available on HeinOnline]. The practice gained traction, however, when the Court decided Church of the Holy Trinity v. U.S., 143 U.S. 457 (1892). Id. at 1010. And by the 1940s, the Court had, in some instances, looked to legislative history even when faced with admittedly clear statutory language. Id. at 1011. Today, the practice of relying on legislative history to determine the meaning of an ambiguous statute has a lengthy history in U.S. courts, and is generally an accepted practice. But it is under attack from some quarters, courts’ reliance on legislative history for interpreting statutory texts may be on the decline. See James Brudney and Corey Ditslear, Liberal Justices’ Reliance on Legislative History: Principle, Strategy, and the Scalia Effect, 29 Berkeley J. Emp. & Lab. L. 117 (2008).

Pros and Cons ▼

As noted above, using legislative history to discover Congress’s intent is controversial. Common criticisms are as follows.

Collective intent is problematic: The legislature is a large body, unlikely to possess a single unified intent. Moreover, even if it did have a collective intent, there is no way to discern whether a particular committee report adequately represents it. See John Manning, Textualism as a Nondeligation Doctrine 97 Colum. L. Rev. 673, 675 (1997).

Legislative Histories bypass the democratic process: It is undemocratic for judges to decide what the law is because it undermines the constitutionally prescribed bicameral legislative process and presentment. See Id. at 675. See also U.S. Const. art I. Moreover, reliance on legislative histories impermissibly delegates Congress’s authority to sponsors or committees (although the constitutionality of allowing agencies to fill in the details of laws and even judicial determinations of meaning themselves remain unclear under a theory of nondelegation). See Id. See alsoBank One Chicago, N.A., 516 U.S. at 280 (Scalia, J. concurring in part and concurring in the judgment) (asserting that reliance upon legislative history constitutes an impermissible delegation of Article I authority).

Manufactured legislative history: Because legislators now know that judges will review legislative history and allow it to shape their legal interpretations, legislators who do not support a piece of legislation, but lack the political support to oppose it successfully, will insert comments into its history in an effort to shape (undemocratically) the law’s impact. See Note, supra, at 1017.

Selectivity: Because legislative histories contain a wide selection of partisan opinions to choose from, judges may choose to select only the language that supports their personal biases. See e.g., Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546 (2005).

In contrast, defenders commonly argue as follows.

Legislative efficiency: Legislators expect the court to resolve any ambiguities in legislation by looking to legislative histories. In this context, legislators permissibly delegate to sponsors and committees authority to clarify statutory language. As Justice Stevens explained in his concurrence to Bank One Chicago, N.A. v. Midwest Bank & Trust Co., 516 U.S. 264, 276-277 (1996): "Legislators, like other busy people, often depend on the judgment of trusted colleagues when discharging their official responsibilities. If a statute such as the Expedited Funds Availability Act has bipartisan support and has been carefully considered by committees familiar with the subject matter, Representatives and Senators may appropriately rely on the views of the committee members in casting their votes. In such circumstances, since most Members are content to endorse the views of the responsible committees, the intent of those involved in the drafting process is properly regarded as the intent of the entire Congress." See also Manning, supra, at 694.

Accuracy: It is sometimes necessary to look at context and the legislature’s intent in order to avoid misapplying the law. According to Justice Stevens, "A jurisprudence that confines a court's inquiry to the ‘law as it is passed,’ and is wholly unconcerned about ‘the intentions of legislators’ would enforce an unambiguous statutory text even when it produces manifestly unintended and profoundly unwise consequences." Conroy v. Aniskoff, 507 U.S. 511, 518 (1993). See also U.S. v. Thompson/Center Arms Co., 504 U.S. 505, 516 (1992)(Justice Souter quoting Justice Frankfurter as saying "A statute, like other living organisms, derives significance and sustenance from its environment, from which it cannot be severed without being mutilated") (citation omitted).

Practicality: If a statute is ambiguous, the inquiry and analysis must extent beyond the text in some way. Why discount materials that may shed light on the language’s intended meaning. According to Justice White, "[a]s for the propriety of using legislative history at all, common sense suggests that inquiry benefits from reviewing additional information rather than ignoring it. As Chief Justice Marshall put it, '[w]here the mind labours to discover the design of the legislature, it seizes every thing [sic] from which aid can be derived.' Legislative history materials are not generally so misleading that jurists should never employ them in a good-faith effort to discern legislative intent." Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 610 (1991) (citations omitted).

LEGISLATIVE HISTORY DEFINED

As a bill moves through the legislature and, eventually, becomes law, Congress generates numerous documents. These documents, along with the chronological record of the bill’s movement through Congress, are all part of the new law’s legislative history. Accordingly, "legislative history" is comprised of pre-enactment history, enactment history, and post enactment history. See, supra, Singer.

Documents reflecting legislative history are not all of equal value, however. Courts generally rate as being the most helpful to interpreting legislative intent reports from the committee that reviewed and recommended a bill, as well as statements made by a bill’s sponsor, see e.g., Zuber v. Allen, 396 U.S. 168 (1969); see also, Corley v. United States, 129 S. Ct. 1558 (2009); Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498 (2009), but courts may also consider other sources of information, separately or taken as a whole, such as hearing testimony, earlier or alternative versions of the bill, and even statements made on the floor of Congress during debate over the bill—just remember to accord any legislative history resource you choose its proper weight. And especially watch out for post-enactment analysis and summaries; they are great for getting started on your research, but courts will not give them much weight, if any, when interpreting a statute. See Sullivan v. Finkelstein, 496 U.S. 617 (1990) (J. Scalia concurring). See also, Cavallo v. Utica-Watertown Health Ins. Co., 3 F. Supp. 2d 223 (N.D.N.Y. 1998).

STARTING YOUR RESEARCH

When you’re just starting to research a statute’s legislative history, it’s important first to gather together all the basic information about the statute in question, including:

the number of the House or Senate bill that Congress enacted;

its date of enactment;

its public law number; and

its location in the U.S. Statutes at Large.

Congress indexes different sources of information differently, around each of these identifiers.

Except for the bill number, this information is available for enacted legislation in the official version of the U.S. Code, in the U.S. Code Annotated, and the U.S. Code Service [First Floor]. Annotations after the statute’s text will provide you with most of the information you need. If you do not have the actual code citation, you can locate this information in the conversion tables at the end of both the U.S. Code Annotated and the U.S. Code Service.

For legislation passed since 1903, bill numbers are provided in the text of U.S. Statutes at Large, which is available from the following sources.

Or you can go to the U.S. Congressional and Administrative News (“USCANN”) [First Floor]. These books are organized by year and public law number or U.S. Statutes at Large citation. The bill number is provided alongside the initial public law reference.

Pre-enactment, you will find bill numbers in tools called status tables.

Compiled Legislative Histories ▼

Before diving into your research project, find out if someone else has done some or all of your work for you. Sources of compiled legislative histories: a bibliography of government documents, periodical articles, and books, 1st Congress-94th Congress compiled by Nancy P. Johnson [KF42.2 1979] is a great resource. For many pieces of legislation, U.S. Congressional and Administrative News (“USCANN”) [First Floor] provides compiled legislative history materials or references to materials, including, inter alia, committee reports, rollcall votes, and presidential signing statements. Union list of legislative histories: 47th Congress, 1881-97th Congress, 1982 compiled by Law Librarians' Society of the District of Columbia [KF4 .U55 1985] may also be useful.

If the legislation you are researching is significant, American landmark legislation (second series) compiled & edited by Irving J. Sloan [KF68 .S5 1984] orAmerican landmark legislation: primary materials compiled and edited by Irving J. Sloan [KF68 .S5 1976] may be helpful. Finally, the CIS Legislative History Service, which was published for the 97-98th Congresses (1981-84), may be helpful [Fiche; ground floor]. And, since 1984, the annual CIS basic set compilation has included a separate volume on Legislative History.

Online, the “Sources of Compiled Legislative History Database”, which is based on Nancy P. Johnson’s work, is available on HeinOnline. And HeinOnline offers selected compiled legislative histories in its “U.S. Federal Legislative History Title Collection.” Westlaw provides online compiled legislative histories for many laws. You can determine what laws are covered by using the following path: directories>U.S. Federal Materials>Arnold & Porter Collection – Legislative Histories. Westlaw also provides online access to USCANN (1948 through December, 1989) and assorted legislative history documents, such as committee reports. Lexis provides legislative history compilations as well. For a list, use the following the path: Legal > Legislation & Politics, U.S. & U.K. > U.S. Congress > Legislative Histories. Finally, LLMC has acquired a collection of compiled legislative histories; they’re not online yet, but will be in the future—we’ll keep you posted.

Locating Specific Documents ▼

BILLS:

Senate and House bills are sequentially, but separately, numbered. They also must be identified with the appropriate Congress because, after each two-year term of Congress, any bills not passed become inactive. Inactive bills must be reintroduced (and renumbered) during the following term. As a bill moves through the legislative process, its status will change. You can look up the different abbreviations used to indicate each bill’s status in the Congressional Bills Glossary.

Congressional Information Service (CIS), an index/abstract service and full-text microfiche publisher of Congressional documents (1970 to 2008)[fiche is on ground floor; indexes are on first floor].

Thomas provides access to bills, and other legislative materials, from the 101st Congress (1989) to the current Congress. Bill status information is available on Thomas also under Bill Summary & Status information.

Bills and Resolutions provides access to bills from the 6th to 42nd Congresses(1799 through 1873), except the 12th Congress.

GovTrack (unofficial access to bills, information on their status, and other materials; current bills only).

For recent acts, the slip law (the official version of the new law until the next collection of Statutes at Large is published) will reference the bill number. Slip laws are available on GPO Access. If the law was passed too recently for GPO Access to provide full text access, you can at least find its P.L. number and Statute at Large Citation at the Federal Register website.

Sometimes it is helpful to compare the language of an enacted bill with the text of an earlier or alternative version. Bill databases, such as Westlaw or Lexis, make this process easier, but finding copies of un-enacted bills still can be challenging. For older documents, you may need to review the indexes or tables contained in the Congressional Record, 1873 through the present, or its predecessors: the Annals of Congress, 1789-1824, Congressional Debates, 1824-37, and the Congressional Globe 1833-73. All debates are available on HeinOnline, from the 1st Congress (1789) to the 111th (2009).

Register of Debates in Congress, available on HeinOnline, vols. 1-14 (1825-1837).

COMMITTEE REPORTS:

Committee Reports are written reports to the House or Senate from the committee assigned to review a bill’s merits in detail. A Committee Report explains the bill and its intended purpose. Both houses normally will generate Committee Reports on all legislation, and, in some cases, if the two chambers hammered out a final bill together, there will also be a Conference Report. As mentioned above, committee reports are generally regarded as more authoritative than other legislative history documents. Conference reports are extremely useful because they are generated near the end of the legislative process and represent the thinking of both houses.

Individual committee reports are numbered by the specific congress that issued the report and its sequence. The government republishes congressional reports, along with other congressional documents, into a series known as the "Serial Set". Each Serial Set volume is consecutively numbered in consecutive order, from 1817 to date. Before 1817, the government compiled selected committee reports into the American State Papers (1789-1838), which are available electronically from the American Memory Project and through HeinOnline’s U.S. Congressional Documents Library.

CONGRESSIONAL DEBATES:

Statements made during floor debates can be indicative of Congress’s intent; statements by sponsors are viewed as being more authoritative than statements by other members of Congress. Since 1873, the best resource for locating statements made by Congresspersons is the Congressional Record, which is available through the following resources.

To locate a specific debate on the floor of Congress, use the "History of Bills and Resolutions" table. The table is located in each annual volume of the Congressional Record, and is noncumulative. It is organized by bill number, and provides page citations to the relevant sections of the Congressional Record.

For records of debates that occurred before 1873, use one of the predecessors to the Congressional Record, such as the Annals of Congress, 1789-1824,Congressional Debates, 1824-37, and the Congressional Globe 1833-73.

Annals of the Congress of the United States: available on HeinOnline, 1st Congress to 18th Congress, 1st Session (1789-1824).

Register of Debates in Congress, available on HeinOnline, vols. 1-14 (1825-1837).

Congressional Record Daily: available on HeinOnline, vols. 140-155 (1994-2009).

HEARINGS:

Testimony given before a committee considering proposed legislation can be used as evidence of legislative intent, but its usefulness for this purpose is limited, since it is not always possible to tie testimony directly to enacted statutory text. Testimony is helpful, however, for gaining information generally about an issue targeted by a piece of legislation, and for fleshing out an intent argument based on other sources. Hearings or information about hearings can be located using the following resources.

Congressional Information Service (CIS), an index/abstract service and full-text microfiche publisher of congressional documents (1970 to 2008)[fiche is on ground floor; indexes are on first floor].

Catalog of U.S. Government Publications indexes hearings. An advantage to this source is that it provides users the SuDoc number for each indexed hearing.

Monthly Catalog of U.S. Government Documents [GP 3.8/8:____][ground floor].

Westlaw provides access to select hearings. In the USTesimony database you can find "agendas and witness lists for U.S. congressional committee hearings, transcripts of oral statements, and written statements submitted to committees of Congress. Coverage begins with January 1993 and includes full coverage from January 1996 to present and selected coverage from 1993 to 1996." You can also find hearings either by clicking the history link from a specific piece of legislation, or by accessing via the USCCAN database information on hearings, and other documents, associated with a particular piece of legislation.

PRESIDENTIAL SIGNING STATEMENTS:

When a President signs a bill into law, he often issues a statement to explain his understanding of the legislation. Historically, these were brief statements, not sources of in-depth legislative analysis. In the modern era, however, presidential signing statements have become increasingly common, and during George W. Bush’s presidency in particular, more likely to contain a lengthy analysis of the related legislation.

This new style of presidential signing statements is controversial. In July 2006, an ABA Task Force found that Bush’s claim that he had the authority to disregard statutory language he deemed unconstitutional "undermine[d] the rule of law and our constitutional system of separation of powers." Others have suggested that presidential signing statements constitute a viable source of legislative history (despite their originating from the executive, and not the legislative, branch). See e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 666 (Scalia dissenting).

Lexis. Use the following search path. Legal > Federal Legal - U.S. > Executive Branch Materials > Public Papers of the Presidents (coverage from 1979 to 2009).

ISSUE SPECIFIC HISTORY:

Congress prepares a variety of reports on issues of concern that do not relate directly to any specific piece of legislation.

CRS REPORTS:

the Congressional Research Service (“CRS”) prepares for Congressional committees nonpartisan research reports on a wide variety of public policy issues. You can find CRS reports in a variety of places (although CRS does not release the reports to the public in any consistent manner).

CRS reports are accessible through CIS microfiche [ground floor]; citations can be located in the LexisNexis Congressional Digital Collection - online index/abstract database that provides full-text access to bills (1989-present)..

Congressional Information Service (CIS), an index/abstract service and full-text microfiche publisher of congressional documents (1970 to 2008)[fiche is on ground floor; indexes are on first floor].

COMMITTEE PRINTS:

Committees publish certain reports as “committee prints.” Generally, these reports are not tied to a specific piece of legislation. Committee prints are available through the LexisNexis Congressional Digital Collection - online index/abstract database that provides full-text access to bills (1989-present) - and in fiche in the CIS collection [ground floor]. Citations for modern prints can be found using Congressional Information Service (CIS), an index/abstract service and full-text microfiche publisher of congressional documents (1970 to 2008) [fiche is on ground floor; indexes are on first floor]. Committee prints are also available electronically on GPO Access from 1997 to the present. Lexis has committee prints from August 1994 through December 22, 2003, and selected prints from the 104th Congress.